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WWW.LIVELAW.IN IN THE SUPREME COURT OF INDIA (CRIMINAL WRIT JURISDICTION) [Order XXXVIII of SCR, 2013] (UNDER ARTICLE32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CRL) No. ______________ Of 2020 IN THE MATTER OF: ILTIJA …Petitioner VERSUS UNION OF INDIA & ORS …Respondents PAPER – BOOK (FOR INDEX PLEASE SEE INSIDE) ADVOCATE FOR THE PETITIONER: AAKARSH KAMRA WWW.LIVELAW.IN IN THE SUPREME COURT OF INDIA (CRIMINAL WRIT JURISDICTION) [Order XXXVIII of SCR, 2013] (UNDER ARTICLE32 OF THE CONSTITUTION OF INDIA) WRIT PETITION (CRL) No. ______________ Of 2020 IN THE MATTER OF: ILTIJA …Petitioner VERSUS UNION OF INDIA & ORS …Respondents INDEX S. Particulars of documents Page no. of part to Remark N. which it belongs Part I Part II (i) (ii) (iii) (iv) (v) 1 Court Fees 2 Listing Proforma A-A1 A-A1 3 Cover Page of Paper Book A-2 4 Index of Record of Proceedings A-3 5 Defects List A-4 Note Sheet NS1 to… 5 Synopsis 6 List of Dates 7 Writ Petition with Affidavit 8 ANNEXURE-P-1 A true typed copy of the Impugned Detention Order dt. 05.02.2020, along with the Impugned Dossier dt. 05.02.2020. WWW.LIVELAW.IN 10 ANNEXURE-P-2 A truecopy of the Order passed by this Hon’ble Court dt. 05.09.2019 11 ANNEXURE-P-3 A true typed copy of the news- report dt. 08.09.2019 available at https://www.ndtv.com/india- news/they-can-challenge-their- detention-nsa-ajit-doval-on-j-k- political-leaders-2097181 12 ANNEXURE-P-4 A true typed copy of the undertaking format/bond under Section 107 r/w Section 117 CrPC dt. NIL 13 ANNEXURE-P-5 A true typed copy of the newsreport dt. 15.10.2015 available athttps://www.financialexpress. com/india-news/amit-shah- interview-says-omar-abdullah- mehbooba-mufti-detained- under-psa-jammu-and-kashmir- article-370/1735832/ 15 Filing Memo 16 Vakalatnama WWW.LIVELAW.IN SYNOPSIS The present is a writ petition under Article 32 against an order dated 05.02.2020 (hereinafter, the “Detention Order” or the “Impugned Detention Order”), issued u/s 8 (1) of the Jammu & Kashmir Public Safety Act, 1978 (hereinafter, “the PSA” or “the 1978 Act”) for preventively detaining Ms. Mehbooba Mufti (hereinafter, “Detenu”), the former Chief Minister of the State of Jammu and Kashmir, and also former Member of Parliament and the President of the Jammu and Kashmir People’s Democratic Party (JKPDP), a registered political party recognised by the Election Commission of India. Significantly, this order has come when the Detenuwas already under detention since August 5,2019, without any palpable authority of the law although it is now being suggested by the State that the same was under Section 107 r/w 117 of the Code of Criminal Procedure, 1973 (“CRPC”). The Petitioner is the daughter and next friend of the Detenu. The Impugned Detention Order signed by the District Magistrate, Srinagar (Respondent No.3 herein)served upon the Detenu at 9.30 PM on 05.02.2020, along with the ‘Grounds’ on which her detention is ordered, whichare wholly and substantially based on the recommendation of and the ‘dossier’ (hereinafter ‘Impugned Dossier’) prepared by the Senior Superintendent of Police, Srinagar (Respondent No.4 herein). No other material showing the facts on which the grounds of were based were given and the Impugned Dossier which is replete with personal remarks in bad taste, (Scheming, hard headed, short lived marriage, Daddy’s Girl etc) is the only material cited in the “grounds” of detention. The foremost reason cited for continued detention, now under PSA was that the six months maximum period of detention under section 107 and 117 CrPC was expiring on the very day the Impugned Detention Order(ref: WWW.LIVELAW.IN Section 116(6) proviso in CrPC) was passed, and that the Detenu had declined to sign a bond or “surety”. This bond and surety which she was repeatedly asked to sign, the records would show,interalia included the promise that: “In case of release from detention, I will not make any comment(s) or issue statement(s) or make public speech(s) hold or participate in public assemblies related to the recent events in the State of Jammu and Kashmir, at the present time, since it has the potential of endangering the peace and tranquility and law and order in the State or any part thereof.” Thus, the admitted basis of the detention is a blanket undertaking not to make any comment on the recent events in the State. On this count alone, the Detention Order should be set aside, for, preventive detention, tolerated by our polity and jurisprudence as a necessary evil, is not meant to stifle legitimate opposition to state policy. Furthermore, the Impugned Dossier only refers to expressions of opinion in the pastas its basis, for, there is not the least suggestion that the Detenu, twice elected MP, also CM, has the least involvement in any and violent activity ever. The grounds of the Detention Order, refer to the past 10 years without details but utterances listed in them range between a time period March 2019 and August 2019. Significantly, only these utterances (12 in number) are listed without a single accompanying instance of any adverse effect on law and order. Moreover, the utterances were not even considered worthy of registering an FIR of the barest Ranbir Penal Code offence, at the time made. Therefore, the matters laid down by the statute (PSA) as relevant for reaching a decision are conspicuous by their absence. WWW.LIVELAW.IN The least stale or most recent utterance noted in the Impugned Dossier is of August 5,2019, on which date she was taken into detention. It opposes the abrogation of Article 370 as unconstitutional- a challenge which even this court has deemed fit to issue notice on and is hearing. The unconstitutionality of the purported abrogation of Article 370 is a common view held by many legal scholars and political scientists and many articles and writings have published taking the same view. Ex facie it is legitimate expression that is sought to be punished and prevented vide the Impugned Detention Order. The instant case therefore warrants this Hon’ble Court’s interference, for what is sought to be prevented is not any threat to public order but a view unpalatable to the ruling dispensation. This cannot be justified as “reasonable objective basis for subjective satisfaction” as required by the statute and as interpreted by this Court in several judgments. (See for instance, PebamNingolMikoi Devi v. State of Manipur (2010) 9 SCC 618 at 626) Likewise, an utterance questioning of the passage of the statute criminalising Triple Talaq when the Supreme Court has already ruled it illegal, and terming it as a misplaced priority, that seems to punish Muslims is listed as a ground although it has no remotest possibility of inciting any disorder. The Impugned Dossier cavils at this as a divisive approach, but fails to show how this will or can disturb order, at any time. If a law is limited to Muslims as a community, any discussion or criticism thereof will also refer to Muslims. If the former is not divisive why should the latter be? Twelve utterances of the Detenu with their dates deliberately concealed are willy-nilly listed with not a whisper of any disturbance at the time uttered but chosen to be made grounds of detention a year later. Each of WWW.LIVELAW.IN the grounds and their ex facie legitimacy as expression and complete lack of nexus with any possible break down of public order. They will more fully be discussed in the Grounds of the instant Petition. Suffice it to say that the Impugned Detention Order is a simpliciter gag order in the guise of a preventive detention order, held to be ultra vires the law and the Constitution by this Court many times. Indeed, an order of preventive detention has been issued against expressions in respect of which even an injunction cannot be granted by a Court of law! Thus, the grounds are not only stale, for they refer to utterances more than six months old and admittedly made with no adverse consequences to law and order, butare also vitiated fornon-application of mind insofar as they fail to show to why thesaid utterances pose a threat to public order. Other than a bald statement, not a single instance of any public disturbance has been cited. Nor is there any application of mind as to why such utterances if they contravene any law, cannot be managed by the normal criminal process. This Court in V Shantha v. State of Telangana AIR 2017 SC 2625 for instance laid down that “The rhetorical incantation of the words, ‘Goonda’ or ‘prejudicial to maintenance of public order cannot be sufficient justification to invoke the draconian power of preventive detention.”The very fact that not even an FIR was registered at that time demonstrates that the utterances were and are unexceptional. The provisions of Section 8(3)(b) of the 1978 Act are wholly violated and none of the requirements laid down therein are satisfied bringing the instant case within the purview of the expression “acting in a manner prejudicial to the maintenance of public order”.No facts supporting the grounds other than the words have been supplied and it would be safe to WWW.LIVELAW.IN assume they are non-existent. The order abounds with legal malafides and malice in law. Furthermore, the Impugned Detention Order is wholly based on the Impugned Dossier which is manifestly biased, slanderous and libelous against the Detenu and which no reasonable person ought to rely on for depriving a citizen of her fundamental freedoms and person liberty.

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